In the Int. of: K.E.E., Appeal of: K.S.

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN THE INT. OF: K.E.E., A MINOR : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
APPEAL OF: K.S., BIOLOGICAL :
MOTHER :
:
:
:
: No. 564 MDA 2020
Appeal from the Decree Entered October 4, 2019
In the Court of Common Pleas of Tioga County
Orphans' Court at No(s): 17-OC-2019
IN THE INT. OF: N.L.S., A MINOR : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
APPEAL OF: K.S., BIOLOGICAL :
MOTHER :
:
:
:
: No. 565 MDA 2020
Appeal from the Decree Entered October 4, 2019
In the Court of Common Pleas of Tioga County
Orphans' Court at No(s): 18-OC-2019
BEFORE: PANELLA, P.J., BENDER, P.J.E., and FORD ELLIOTT, P.J.E.
MEMORANDUM BY PANELLA, P.J.: FILED SEPTEMBER 08, 2020
K.S. (“Mother”) appeals from the decrees entered October 14, 2019,
that granted the petitions of the Tioga County Department of Human Services
(“DHS” or “the Agency”), and involuntarily terminated her parental rights to
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her daughters, K.E.E. (born September 2012) and N.L.S. (born April 2015)
(collectively, “Children” or “the Children”).1, 2 After careful review, we affirm.
On January 3, 2018, Tioga County DHS petitioned for Emergency
Protective Custody of the Children. See N.T., 6/25/19, at 17-18. DHS had
received a report that two-and-a-half-year-old N.L.S. was hospitalized in the
Intensive Care Unit (“ICU”) at Golisano Children’s Hospital in Rochester, New
York. See id. N.L.S. had suffered extensive second and third-degree burns.
See id.
When interviewed, Mother stated that she had picked up N.L.S. from
daycare early on December 27, 2017, because N.L.S. was not feeling well.
See id. at 19. After N.L.S. refused dinner, Mother claimed that she put N.L.S.
into a bath with her two siblings and that, when she went to bed at seven
o’clock, N.L.S. was fine. See id. When N.L.S. woke up the next morning, she
had a blister-like rash, so Mother took N.L.S. to the hospital. See id.
However, hospital staff informed caseworkers that Mother had sent text
message pictures of N.L.S. to L.S. (“Grandmother”), the paternal grandmother
of N.L.S.’s half sibling G.S., asking about the injuries. See id. at 19.
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1 Both K.E. (K.E.E.’s father) and J.M.Z. (N.L.S.’s father) consented to the
termination of their parental rights. Neither father has appealed, nor
participated in the instant appeal.
2 A third child, G.S., was also removed from the home. N.T., 2/6/18, at 48-
49. G.S. is the half-brother of N.L.S. and K.E.E. and is not a subject of the
instant termination. See id. G.S. was placed in the custody of his father,
G.S., and remained in his father’s custody as of the time of the termination
hearing. N.T., 5/22/18, at 7.
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Grandmother told Mother to go to the hospital, but Mother stated that she did
not want to take N.L.S. because the child was not crying. See id.
A ChildLine report was made; the CPS investigation was transferred
from Steuben County, New York, where Mother had claimed to live, to Tioga
County, Pennsylvania, where Mother actually lived. N.T., 1/3/18. at 7. At the
conclusion of the hearing, the orphans’ court granted DHS legal and physical
custody of N.L.S. and K.E.E., and both Children were placed in foster care.
See id. at 8.
DHS filed a petition seeking to have the Children declared dependent.
Following an extensive hearing on February 6, 2018, which included testimony
from a doctor who had examined N.L.S. at the hospital, the Children were
adjudicated dependent.3 N.T., 2/6/18, at 1-133. Additionally, the orphans’
court made a finding of aggravated circumstances due to the fact that N.L.S.
had been a victim of a child abuse. See id. at 58, 130-32. The orphans’ court
held permanency review hearings in May 2018, September 2018, December
2018, and May 2019.4
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3 At the adjudicatory hearing, color photographs of N.L.S.’s second- and third-
degree burns were admitted, without objection, as Agency Exhibit 1. N.T.
2/6/18, at 11. Additionally, the parties stipulated to the admission of records
from the Monroe County, New York, Department of Human Services, as
Agency Exhibit 2. See id. at 47. Text messages between Mother and
Grandmother on the night N.L.S. suffered her injuries were introduced as
Guardian Exhibit 1. See id. at 80.
4The permanency review orders are not contained within the exhibits entered
at the termination hearing.
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On March 5, 2019, DHS filed petitions to involuntarily terminate the
parental rights of Mother to the Children pursuant to 23 Pa.C.S.A. §
2511(a)(1), (2), (5), (8), and (b). DHS filed amended petitions on June 21,
2019, incorporating grounds pursuant to 23 Pa.C.S.A. § 2511(a)(9), following
Mother’s conviction on April 23, 2019 of aggravated assault and endangering
the welfare of N.L.S.5 See N.T., 6/25/20, at 23-24.
In June 2019, July 2019, and August 2019, the orphans’ court conducted
evidentiary hearings on the petitions. DHS presented the testimony of Clara
Holley, Brandi Greene, Barbara Short, Ashley Kohler, foster mother A.L.,
Grandmother, and Dr. Denise Feger, who performed the bonding
assessments. Mother, represented by counsel, was present at the hearings
and testified on her own behalf. Mother presented the testimony of Constance
Gunn, Mother’s parents J.S. and B.S., godmother S.W., and family friend S.W.
The Children were represented by Lenore M. Urbano, Esquire, as guardian ad
litem, and Anne K. Leete, Esquire, as legal counsel. Attorney Urbano
presented the testimony of Stephanie Brostrom, a case aid with family
services in Rochester, New York.
Clara Holley testified that she is a specialized caseworker for Service
Access and Management (“SAM”). N.T., 6/25/19, at 8. Holley worked with
Mother weekly in Tioga County Prison since May 2019; prior to May, other
____________________________________________
5 Mother was sentenced, on July 16, 2019, to fourteen to sixty months of
imprisonment for aggravated assault and a concurrent term of imprisonment
of fourteen to sixty months for endangering the welfare of a child.
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caseworkers from SAM assisted Mother. See id. at 8-9. Mother’s goals and
objectives were working on parenting; engaging in age-appropriate discipline;
finding employment upon release from prison; and securing housing. See id.
at 9. Mother was inconsistent with regard to her cooperation; some weeks
she was cooperative, but other weeks she would not speak to Holley, who
would have to leave the prison. See id. at 10-13. Holley found that Mother
made some progress, but not enough to close services. See id. at 11.
Brandi Greene testified that she is a placement supervisor employed by
SAM. See id. at 17-18. Greene was one of two initial caseworkers who went
to Rochester, New York, to meet Mother at the hospital and take emergency
custody of the Children. See id. at 18. DHS had applied for emergency
custody after Mother had refused to allow hospital workers to administer pain
medication for N.L.S.’s burns. See id. at 19.
Mother at first claimed that N.L.S. was fine when she went to bed. See
id. However, hospital staff informed Greene that Mother had texted
Grandmother about N.L.S.’s “rash” the night before and was told to go to the
hospital. See id.
Mother remained steadfast in her belief that N.L.S. was not in pain. See
id. N.L.S. was hospitalized from December 28, 2017, until January 24, 2018.
See id. at 20. After N.L.S. was released from the hospital, Greene continued
to work with Mother. See id. at 21. Mother continued to give inconsistent
stories -- at least seven or eight explanations -- regarding N.L.S.’s injury, and
refused to accept that the injury was thermal burns. See id. at 21-22, 43.
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Mother was recommended for a variety of services, including
psychological counseling; trauma assessment; parenting education;
visitation; and mental health services. See id. at 24. Mother did undergo
mental health services for a period of time in 2018. See id. at 24-25, 34.
Mother did not complete parenting education. See id. at 33-34. Mother
participated regularly in visitation. See id. at 26.
However, after Mother was incarcerated, she became uncooperative and
noncompliant. See id. at 29. Additionally, visitation workers reported several
concerning incidents with Mother. See id. at 30.
During one visit, Mother shut N.L.S.’s arm in the door and N.L.S. began
to cry. See id. Mother told her to “stop crying and being a baby.” Id. When
staff tried to redirect Mother, Mother rolled her eyes and ignored them. See
id.
In another incident, Mother and N.L.S. were in a bathroom stall with
staff outside. See id. There was a smacking noise and N.L.S. began to
scream and cry, but Mother denied that anything had happened. See id. In
February or March, N.L.S. spilled a drink, and Mother got up, pulled N.L.S.’
chair out from beneath her, and N.L.S. fell onto the floor. See id. at 30-31.
Barbara Short testified that she is a clinical social worker for Family Life
Ministries, and provides counseling, specializing in trauma. See id. at 48.
Short began seeing Mother in July 2018 and ceased seeing Mother in
December 2018 when Mother stopped coming to appointments. See id. at
49. Mother did send some updates to Short through text messages, but Short
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testified that she prefers to limit text contact with clients. See id. Short
testified that Mother did not understand why the Children were taken away,
and continued to present N.L.S.’s injuries as “some redness to her skin.” Id.
at 50-51.
Stephanie Brostrom testified that she is a case aide with Family
Services, and supervised four five-hour long visits at the hospital with Mother
and N.L.S. in January 2018. N.T., 8/22/19, at 57. Brostrom testified that
during the first visit, N.L.S. was in agony due to the burns and required
sedation. See id. at 57. During the visit, N.L.S. was wearing a net shirt over
her dressings which required changing, and was in such pain that she threw
up. See id. Mother was standing next to the crib while hospital staff changed
N.L.S.’s dressings and was completely emotionless and seemed unbothered
by N.L.S.’s pain. See id. at 58.
At another visit, a doctor came in to explain the procedures and skin
grafts to Mother, who had her phone in her hand and would not acknowledge
that the doctor was in the room. See id. at 58. J.S., Mother’s father, was in
the room as well asking questions, including whether the doctor thought the
burns were chemical in nature. See id. The doctor replied that the burns
were thermal. See id.
During another visit, Mother held N.L.S. in her arms. See id. N.L.S.
would settle as long as Mother did not move, but Mother continued to move
and N.L.S. would cry. See id. Mother had no visible reaction to N.L.S.’s tears.
See id. Brostrom testified that the only time Mother was visibly upset was as
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the second visit was ending, N.L.S. woke up and said, “Mommy, please don’t
leave.” Id. at 59. Mother teared up, but turned around and left. See id.
Brostrom observed that for much of the visits, Mother was on her phone while
her parents were interacting with N.L.S., and did not pay attention to the child
at all. See id. at 59.
Ashley Kohler testified that she is a caseworker employed by Tioga
County DHS. N.T., 6/25/19, at 54. Kohler is the Children’s caseworker, and
both K.E.E. and N.L.S. are doing well in their placements. See id. at 54-55.
N.L.S. is placed with foster mother A.L., and K.E.E. is placed with
Grandmother. See id. at 54. K.E.E., N.L.S., and G.S. are able to have visits
at Grandmother’s house. See id. at 55.
Kohler testified that one of the objectives of Mother’s family service plan
was that Mother be able to articulate the reason the Children were placed into
care and avoid any further abuse of the Children. See id. at 57-58, 62.
Mother was never able to do that, and continued to provide different stories,
including that she had put all three children into the bath, or that the injury
was a chemical burn caused by body wash. See id. at 58. Mother never
acknowledged that N.L.S. was injured by thermal burns. See id.
Another goal of the family service plan was for Mother to improve
childcare knowledge and household management. While Mother brought
appropriate food to visits, she utilized inappropriate discipline at the visits.
See id. at 61.
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Kohler testified that Mother told her that, as of February 2019, she was
still attending mental health treatment. See id. at 62. However, when Kohler
contacted Short, it became clear Mother had stopped attending therapy in
December 2018. See id. at 62-63. Mother did not attend the majority of the
Children’s medical or dental appointments, though she was aware of them.
See id. at 64.
Kohler also testified that during the bonding assessment conducted in
February 2019, N.L.S. did not seem interested in interacting with Mother. See
id. at 60. Mother then watched K.E.E. play a game on her cellphone. See id.
Once the bonding assessment was over, N.L.S. left in hysterics, crying that
she did not want Mother to leave, but that she wanted Mother to come with
her to “mommy’s house,” meaning her foster mother. Id.
Kohler observed N.L.S.’s interactions with her foster mother, A.L., and
they are warm and appropriate; foster mother can easily redirect N.L.S., and
N.L.S. enjoys cuddling with foster mother. See id. at 73-74. K.E.E. loves to
play with her resource parents and joke around. See id. at 74. She calls
G.S.’s father “daddy” when he is at the house. Id.
Both of the Children expressed a desire to live with Mother, however,
they also communicated a desire to live with their current caregivers. See id.
at 74-75. K.E.E. stated to Kohler that, “Mommy told me if I tell you [I want
to live with her] enough times you’ll let me go home.” Id. at 75. N.L.S. told
Kohler that she likes her home with A.L. and the pets she has there. See id.
at 76. When asked to make a “child circle,” most of N.L.S.’s connections were
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A.L.’s family members. See id. The Agency’s recommendation was to
terminate Mother’s parental rights to both of the Children. See id. at 64.
A.L. testified that she is N.L.S.’ foster mother, and that N.L.S. has been
in her care for the last eighteen months. N.T., 7/13/19, at 55. At the time of
the hearing, N.L.S. had continuing complex medical needs that would require
steroid injections into her skin graft sites to decrease the scar tissue. See id.
at 61. This is a painful procedure that would require twilight sedation or
general anesthesia. See id. N.L.S. still requires an uncomfortable
compression garment to minimize scarring. See id. at 62. N.L.S. will require
continuing treatment as she grows and the scars change, and she could still
develop hypersensitivity. See id. N.L.S. will need to engage in scar
management throughout her life. See id.
A.L. testified that N.L.S. is thriving and loves to talk to learn and talk to
people. See id. at 55-56. N.L.S. calls A.L. “mom” or “mommy” and A.L.’s
sister “True Love.” Id. at 56, 58. A.L. stated that at times, when N.L.S. was
picked up for visits with Mother, she would say that she didn’t want to go and
ask whether she would be coming back to A.L. See id. at 59. A.L. testified
regarding her desire to adopt N.L.S. and her intentions to continue N.L.S.’s
relationship with her siblings. See id. at 56-57.
Grandmother testified that she is G.S.’s grandmother and K.E.E.’s foster
mother. See id. at 64. As of the date of the hearing, K.E.E. is doing well in
her placement; she is social and has many friends at school. See id. at 64-
65. K.E.E. has been integrated into Grandmother’s extended family and loves
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seeing them. See id. at 65. She calls Grandmother “Grandma” and
Grandmother’s husband “Papa.” See id. at 66. It is Grandmother and
Grandfather’s intent to adopt K.E.E. See id. They also wished to adopt N.L.S.
See id.
Dr. Denise Feger testified that she evaluated K.E.E. and N.L.S. N.T.,
8/22/19, at 65. In the course of her evaluation, she spoke with Mother and
caseworkers from DHS. See id. Dr. Feger did not make a diagnosis for K.E.E.,
who was “doing quite well,” although she was struggling with sadness and
missing her mom. See id. at 65-66. K.E.E shared that she knew N.L.S. was
burned because her mother had put her in the tub, but there was little detail
around the disclosure. See id. at 66. Dr. Feger recommended that K.E.E.
participate in outpatient mental health services to address any confusion she
had regarding her relationship with her mother and current caregiver. See
id.
With regard to N.L.S., Dr. Feger noted that because of her age and
length of time in care, she identified her foster mother as her primary
caregiver. See id. at 67. N.L.S. referred to A.L. as “mom one” and Mother
as “mom two.” Id. Dr. Feger did not give N.L.S. a diagnosis either because
there was “so very much in a place of transition at that time.” Id. at 68. Dr.
Feger’s biggest concern was the “limbo” that the Children were in was having
an emotional effect on them. Id. She suggested play therapy for N.L.S. to
assist her in developing coping skills. See id. Dr. Feger recommended that
permanency be granted to the Children with therapeutic intervention to
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support them in having a clear understanding of their future, regardless of
whether that was termination or reunification. See id. at 69.
After a bonding evaluation, Dr. Feger noted that both of the Children
had a bond with Mother and did not appear fearful or reluctant to interact with
her. See id. at 72. Both of the Children indicated a desire to live with Mother,
but also, a desire to stay with their current caregivers. See id. at 80-81. If
termination was granted, Dr. Feger opined that the Children would struggle
with the loss of their mother in her capacity as a mother, but not a primary
caregiver, as they view both foster parents as their primary caregivers. See
id. at 72, 78.
Dr. Feger also evaluated Mother. See id. at 72. She diagnosed Mother
with acute stress disorder due to the events that had taken place, and
recommended outpatient mental health treatment so Mother could better
manage her stress-related symptoms. See id. at 73-74.
Mother testified that, prior to her incarceration, she lived in Tioga,
Pennsylvania. Before that she lived in Campbell, New York, for sixteen years.
See id. 14-15. Mother testified that she has three older children with her ex-
husband, B.R., who live with their father and grandmother. See id. at 17-18.
In contrast, Mother testified that K.E.E., N.L.S., and G.S had always
lived in her home and were never apart from her for any significant time. See
id. at 22-23. Prior to her conviction for aggravated assault, Mother had not
been charged with any crimes, although she had had issues with Children and
Youth Services in Steuben County, New York. See id. at 26-27.
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At least two incidents were indicated. See id. at 27-28. Mother claimed
that at the time of N.L.S.’s injury she was already receiving services and
counseling in New York. See id. at 28-29. Mother testified that since N.L.S.’s
injury, she has cooperated with the required services. See id. at 32. Mother
reiterated that she wished to remain part of the Children’s lives. See id. at
35.
Mother claimed to have accepted responsibility for the causation of
N.L.S.’s injury. See id. at 33-34. However, on cross examination, Mother
stated that she accepted responsibility only for failing to promptly seek
medical attention, not for the burns themselves. See id. at 52. Mother again
equivocated when asked whether N.L.S. had suffered thermal burns, stating,
“I’m not sure what I believe, but I don’t believe that she did.” Id. at 55.
Constance Gunn testified that she supports, teaches, and educates
parents in the home. See N.T., 7/31/19, at 11. Gunn worked with Mother
weekly as of May 2018 in her home, at a local church in Lawrenceville,
Pennsylvania, and observed her spending time with the Children. See id. at
12-13, 29-30.
Mother completed several certificates in the parenting education
program. See id. at 15-16. However, Mother continued to receive services
up until the date of the termination hearing. See id. at 16. Gunn described
Mother as cooperative and felt that Mother incorporated her lessons into
interactions with the Children. See id. at 19. Gunn testified that there was
a close relationship between the Children and Mother, and that the Children
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did not seem to be afraid of Mother. See id. at 21. Gunn did not have
concerns regarding Mother’s ability to parent. See id. at 23-24. However,
Gunn also stated Mother never demonstrated an understanding of the severity
of N.L.S.’s injuries. See id. at 47.
J.S. testified that he is Mother’s adopted father, and that he adopted
Mother when she was eighteen months old. See id. at 74. The Children call
him “Papa” and his wife “Nana.” Id. at 80-81. J.S. opined that Mother loves
her children and that she is a good mother. See id. at 75. J.S. did not believe
that Mother deliberately caused harm to N.L.S., although he believed she was
negligent in her response. See id. at 78. J.S. testified as to his fear that, if
Mother’s rights were terminated, the Children would lose contact with their
three older half-siblings. See id. at 83.
B.S. testified that she is Mother’s adopted mother and would hate to see
the Children separated from her. See id. at 87. B.S. testified that Mother
wants to be in the Children’s lives. See id. at 89. Prior to N.L.S.’s injury,
B.S. had no concerns about Mother’s ability to raise the Children. See id. at
93.
S.W., the godmother of the Children, testified that she has been friends
with Mother since the sixth grade. See id. at 98. S.W. denied being aware
of any abuse or neglect by Mother. See id. at 100-101.
S.W. (not the same as the Children’s godmother), a family friend of J.S.
and B.S., testified that she has known Mother since Mother was a child and
through church. N.T., 8/22/19, at 5. Mother would bring the Children to the
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church nursery regularly. See id. at 5-7. S.W. testified that the Children
were always clean and had no marks on their bodies. See id. at 7. S.W.
stated that the Children were not hesitant around Mother. See id. at 10.
At the conclusion of the hearing, legal counsel for the Children, Attorney
Leete, noted to the orphans’ court that she had met individually with both of
the Children. See id. at 88-89. She did not feel that N.L.S., at four years
old, had the capacity to understand the concept of making a legal decision
about her custody. See id.
However, based upon her observations, N.L.S. was closely bonded with
her foster mother and family, and perceived her foster mother as the one who
takes care of her and meets all of her needs. See id. N.L.S. did not identify
Mother as part of her family when asked. See id. at 88.
K.E.E. identified Mother as her mom, but also Grandmother, Pop-Pop,
and G.S. as her family that she lives with. See id. at 89. K.E.E. wanted to
live with Mother but understood that she could not because of N.L.S.’s injury.
See id. at 90. When asked, K.E.E. stated that she wanted to live with Mother
because she missed her dog. See id. K.E.E. is settled in her current
environment, but her expressed legal interest is to reside with Mother. See
id.
Attorney Urbano, as guardian ad litem, recommended termination as
being in the best interests of both of the Children. See id. at 91.
On October 4, 2019, the court entered decrees terminating Mother’s
parental rights. Mother subsequently filed petitions to appeal nunc pro tunc
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and statements of errors complained of on appeal pursuant to Pa.R.A.P.
1925(a)(2)(i) and (b), and Notices of Appeal to this Court. After filing these
documents, Mother’s counsel filed petitions to withdraw as counsel.6 After
this Court directed the orphans’ court to rule on the petitions for nunc pro tunc
relief, the orphans’ court granted the petitions on May 8, 2020. By order of
May 11, 2020, this Court consolidated Mother’s appeals.
On appeal, Mother raises the following issues for our review:
1. Did the [t]rial [c]ourt err and abuse its discretion in finding that
the Department of Human Services provided by clear and
convincing evidence that the conditions which led to the removal
and placement of the [C]hildren were sufficient to meet [the]
statutory premise of [S]ection 2511(a)[(9)] when[,] although
[the] conviction had occurred[,] the appeal for said conviction had
not been finalized[?]
2. Did the [t]rial [c]ourt err and abuse its discretion in finding that
the Department of Human Services proved by clear and
convincing evidence that the termination of Mother’s parental
rights was in the best interest[s] of the [C]hildren considering the
bond between Mother and [the C]hildren and Mother’s [role] as
sole caregiver for the [C]hildren[?]
Mother’s Brief at 8-9 (suggested answers omitted).
We review these claims mindful of our well-settled standard of review:
The standard of review in termination of parental rights cases
requires appellate courts to accept the findings of fact and
credibility determinations of the trial court if they are supported
by the record. If the factual findings are supported, appellate
courts review to determine if the trial court made an error of law
or abused its discretion. A decision may be reversed for an abuse
of discretion only upon demonstration of manifest
unreasonableness, partiality, prejudice, bias, or ill-will. The trial
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6 Mother’s termination counsel also filed an appellate brief on her behalf.
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court’s decision, however, should not be reversed merely because
the record would support a different result. We have previously
emphasized our deference to trial courts that often have first-hand
observations of the parties spanning multiple hearings.
In re T.S.M., 71 A.3d 251, 267 (Pa. 2013) (citations and quotation marks
omitted).
Termination of parental rights is governed by Section 2511 of the
Adoption Act, 23 Pa.C.S.A. § 2101-2938, which requires a bifurcated analysis:
Initially, the focus is on the conduct of the parent. The party
seeking termination must prove by clear and convincing evidence
that the parent’s conduct satisfies the statutory grounds for
termination delineated in Section 2511(a). Only if the court
determines that the parent’s conduct warrants termination of his
or her parental rights does the court engage in the second part of
the analysis pursuant to Section 2511(b): determination of the
needs and welfare of the child under the standard of best interests
of the child. One major aspect of the needs and welfare analysis
concerns the nature and status of the emotional bond between
parent and child, with close attention paid to the effect on the child
of permanently severing any such bond.
In re L.M., 923 A.2d 505, 511 (Pa. Super. 2007) (citations omitted). Here,
the orphans’ court terminated Mother’s parental rights pursuant to 23
Pa.C.S.A. § 2511(a)(9) and (b), which provide in relevant part as follows:
§ 2511. Grounds for involuntary termination
(a) General rule.--The rights of a parent in regard to a child may
be terminated after a petition filed on any of the following
grounds:
***
(9) The parent has been convicted of one of the
following in which the victim was a child of the parent:
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(i) an offense under 18 Pa.C.S. Ch. 25 (relating
to criminal homicide);
(ii) a felony under 18 Pa.C.S. § 2702 (relating
to aggravated assault);
(iii) an offense in another jurisdiction equivalent
to an offense in subparagraph (i) or (ii); or
(iv) an attempt, solicitation or conspiracy to
commit an offense in subparagraph (i), (ii) or
(iii).
***
(b) Other considerations.--The court in terminating the rights
of a parent shall give primary consideration to the developmental,
physical and emotional needs and welfare of the child. The rights
of a parent shall not be terminated solely on the basis of
environmental factors such as inadequate housing, furnishings,
income, clothing and medical care if found to be beyond the
control of the parent . . .
23 Pa.C.S.A. § 2511(a)(9) and (b).
There is not a wealth of case law regarding this Court’s review of
challenges to the sufficiency of the evidence regarding termination of a
parent’s rights pursuant to Section 2511(a)(9). With regard to its Section
2511(a)(9) findings, the orphans’ court observed that, “the [c]ourt has taken
judicial notice of [Mother’s] conviction for Aggravated Assault against [one of
the Children], and accordingly the [c]ourt determines grounds for termination
exist.” Orphans’ Court Opinion, 10/4/19, at 2.
Mother does not contest that she was convicted of aggravated assault,
nor does she make argument regarding the facts of the case. See Mother’s
brief at 19. Rather, Mother argues that the matter was taken up on appeal
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and was awaiting “en banc” decision and, thus, the amended petition alleging
a final conviction was premature and the court’s reliance for termination was
also premature.7 See id.
Initially, we note
[i]t is well-settled that this Court will not review a claim unless it
is developed in the argument section of an appellant’s brief, and
supported by citations to relevant authority. In re W.H., 25 A.3d
330, 339 n.3 (Pa. Super. 2011), appeal denied, 611 Pa. 643, 24
A.3d 364 (2011) (quoting In re A.C., 991 A.2d 884, 897 (Pa.
Super. 2010)) (“‘[W]here an appellate brief fails to provide any
discussion of a claim with citation to relevant authority or fails to
develop the issue in any other meaningful fashion capable of
review, that claim is waived.’”).
In re M.Z.T.M.W., 163 A.3d 462, 465–66 (Pa. Super. 2017). In Mother’s
argument, although she cites generally to case law regarding the standards
for involuntary terminations, she cites no case law to support her position and
interpretation that, because her case was still on appeal, the orphans’ court’s
Section 2511(a)(9) finding was premature. Accordingly, we deem her claim
waived. In re M.Z.T.M.W., 163 A.3d at 465–66. However, even if not
waived, we would not find merit in her argument.
[T]he interpretation and application of a statute is also a question
of law. As with all questions of law, we must employ a de novo
standard of review and a plenary scope of review to determine
whether the court committed an error of law.
____________________________________________
7We take judicial notice that Mother appealed her conviction to this Court. In
April 2020, a three-judge panel of this Court affirmed Mother’s judgment of
sentence. In May 2020, Mother filed a Petition for Allowance of Appeal to the
Pennsylvania Supreme Court. As of the date of the filing of this memorandum,
no ruling had been issued as to Mother’s petition to the Pennsylvania Supreme
Court.
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When interpreting a statute, this court is constrained by the rules
of the Statutory Construction Act of 1972 (the “Act”). The Act
makes clear that the goal in interpreting any statute is to ascertain
and effectuate the intention of the General Assembly while
construing the statute in a manner that gives effect to all its
provisions. The Act provides: “[w]hen the words of a statute are
clear and free from all ambiguity, the letter of it is not to be
disregarded under the pretext of pursuing its spirit.” Moreover, it
is well settled that “the best indication of the General Assembly’s
intent may be found in a statute's plain language.” Additionally,
we must presume that the General Assembly does not intend a
result that is absurd, impossible of execution, or unreasonable and
does intend to favor the public interest over any private interest.
G.A.P. v. J.M.W., 194 A.3d 614, 616–17 (Pa. 2018) (citations omitted).
Here, we are asked to interpret Section 2511(a)(9) of the Domestic
Code, which states that one of the grounds for termination of parental rights
is when the parent has been convicted of aggravated assault pursuant to 18
Pa.C.S.A. § 2702 as to one of their children. 23 Pa.C.S.A. § 2511(a)(9). The
term “conviction” is not explicitly defined in the Act. However, this Court has
previously examined the history of the term in Pennsylvania. See
Commonwealth v. Hale, 85 A.3d 570, 578–85 (Pa. Super. 2014). The term
is generally understood, for legal purposes, to refer to a judgment of sentence
entered after a finding of guilt or entry of a plea. See id., at 582.
The legislature has indicated that it understands this meaning in at least
one context. See id. Under 18 Pa.C.S.A. § 109, a conviction occurs when a
judgment of sentence has been entered. However, that section also defines a
conviction as an instance where no judgment of sentence has been entered
but there is a guilty verdict or plea of guilt, so long as the reason for the lack
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of judgment is “other than a motion of the defendant.” Id. While the
legislature made an exception for pre-judgment motions, it did not do so for
post-judgement appeals.
As a result, we conclude that for purposes of section 2511(a)(9), a
conviction is understood to encompass a guilty verdict or plea that is
accompanied by a sentence. When specifying that courts may terminate
parental rights for convictions of certain crimes, the legislature made no
mention of the appellate process. The legislature specifically did not require
a final judgment of sentence, as it did in the requirements for jurisdiction to
file a petition seeking Post Conviction Relief. See 42 Pa.C.S.A. § 9545.
Accordingly, the Domestic Relations Code, which specifies a conviction, is not
ambiguous and when “the words of a statute are clear and free from all
ambiguity, the letter of it is not to be disregarded under the pretext of
pursuing its spirit.” G.A.P., 194 A.3d at 616-17.
Further, because we “presume the General Assembly does not intend a
result that is absurd, impossible of execution, or unreasonable and does intend
to favor the public interest over any private interest,” we cannot conclude that
the legislature intended to force orphans’ courts to wait to issue termination
decrees until a parent could potentially exhaust every avenue of appeal, a
process that could take years. See G.A.P., 194 A.3d at 616-17; see, e.g.,
In re Adoption of R.J.S., 901 A.2d 502, 513 (Pa. Super. 2006) (recognizing
that a child’s life cannot be held in abeyance while a parent attempts to attain
the maturity necessary to assume parenting responsibilities).
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Accordingly, the court did not abuse its discretion in concluding that DHS
had introduced clear and convincing evidence sufficient to find that Mother
had been convicted of aggravated assault of N.L.S. such that the requirements
of the statute were satisfied. See L.M., 923 A.2d at 511; 23 Pa.C.S.A. §
2511(a)(9).
Mother next argues that the court erred in terminating her parental
rights because it was not in the best interests of the Children. Specifically,
Mother argues that there was a bond between her and the Children, and the
facts were undisputed that Mother had acted as a primary caregiver prior to
the incident, and had provided the Children with a safe, stable home. See
Mother’s brief at 20-31.
Mother’s argument challenges the orphans’ court’s conclusion under 23
Pa.C.S.A. § 2511(b).
. . . Section 2511(b) focuses on whether termination of parental
rights would best serve the developmental, physical, and
emotional needs and welfare of the child. As this Court has
explained, Section 2511(b) does not explicitly require a bonding
analysis and the term ‘bond’ is not defined in the Adoption Act.
Case law, however, provides that analysis of the emotional bond,
if any, between parent and child is a factor to be considered as
part of our analysis. While a parent’s emotional bond with his or
her child is a major aspect of the subsection 2511(b) best-interest
analysis, it is nonetheless only one of many factors to be
considered by the court when determining what is in the best
interest of the child.
[I]n addition to a bond examination, the trial court can
equally emphasize the safety needs of the child, and
should also consider the intangibles, such as the love,
comfort, security, and stability the child might have
with the foster parent. Additionally, this Court stated
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that the trial court should consider the importance of
continuity of relationships and whether any existing
parent-child bond can be severed without detrimental
effects on the child.
In re Adoption of C.D.R., 111 A.3d 1212, 1219 (Pa. Super. 2015) (quoting
In re N.A.M., 33 A.3d 95, 103 (Pa. Super. 2011) (quotation marks and
citations omitted).
A parent’s abuse and neglect are likewise a relevant part of this analysis:
[C]oncluding a child has a beneficial bond with a parent simply
because the child harbors affection for the parent is not only
dangerous, it is logically unsound. If a child’s feelings were the
dispositive factor in the bonding analysis, the analysis would be
reduced to an exercise in semantics as it is the rare child who,
after being subject to neglect and abuse, is able to sift through
the emotional wreckage and completely disavow a parent. . . . Nor
are we of the opinion that the biological connection between [the
parent] and the children is sufficient in of itself, or when
considered in connection with a child’s feeling toward a parent, to
establish a de facto beneficial bond exists. The psychological
aspect of parenthood is more important in terms of the
development of the child and its mental and emotional health than
the coincidence of biological or natural parenthood.
In re K.K.R.-S., 958 A.2d 529, 535 (Pa. Super. 2008) (internal citations and
quotation marks omitted).
The court found that while K.E.E. had a bond with Mother, termination
still served K.E.E.’s best interests:
In this matter, the [c]ourt took judicial notice of the dependency
court proceedings and records. During the dependency
proceedings, [DHS] established that [Mother] failed to obtain
immediate medical care for [N.L.S.], only taking her to the
hospital the morning after the injuries occurred. [Mother] also
failed to participate, in any meaningful way, in [Child’s] post-
hospitalization treatment, including skin graft procedures, follow-
appointments, and therapy intended to ease pain and manage or
limit scarring.
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[K.E.E.] has been in Kinship placement with [Grandmother and
Grandfather] since her removal from [Mother’s] care. The Kinship
home has expressed a willingness to provide permanency to
[K.E.E.] through adoption. The Kinship home has provided for all
needs of [K.E.E.] since her placement. The Kinship home has
participated in her medical and dental care, attended and
support[ed] her educational needs and activities. Further, the
Kinship home has continued to support [K.E.E.]’s contact with her
biological siblings. [Mother] has not been meaningfully engaged
in [K.E.E.]’s medical, educational, or emotional development.
[K.E.E.] is aware of and identifies [Mother] as her mother.
Contact between them has occurred only during supervised visits.
[K.E.E.] identifies her resource home as her own and has formed
connections and bonds with other members of the resource
parent’s family, and participated in the normal activities of the
family life with them.
[Mother] is currently incarcerated in the State Correctional
System for an indeterminant term between fourteen (14) and
sixty (60) months for her convictions in the criminal case involving
[N.L.S.]. This fact, though not determinative, has been considered
by the [c]ourt as directly and significantly impacting [the
Children’s] right to permanency. Prior to her incarceration,
[Mother] participated in supervised visits with [the Children], and
had never progressed to either semi or unsupervised visits during
the time the dependency action was open. It is unknown when
[Mother] will be paroled and even more uncertain when progress
would warrant more extensive visitation.
What is absolutely certain is that [K.E.E.,] having been in the care
of [DHS] for nearly two years now, is entitled to permanency.
Permanency in this case is not only [K.E.E.]’s right, but serves her
best interest both immediately and long-term. Permanency may
be accomplished for [K.E.E.] by the termination of [Mother’s]
parental rights. The [c]ourt recognizes termination will sever the
bond [K.E.E.] has with [Mother,] and that this may well require
extra support or services, however, it will serve [K.E.E.]’s long-
term emotional and developmental best interests.
Orphans’ Court Opinion, 10/4/19, at 2-4.
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The court’s analysis of N.L.S.’s best interests was nearly identical to its
analysis of K.E.E.’s best interests, with the exception of the following
paragraphs regarding N.L.S.:
The responsibility for managing [N.L.S.’s] therapy and care has
been placed upon the resource (foster) parent. The resource
parent has, under the supervision of [DHS,] attended to all of the
medi[c]al, emotional, and developmental needs of [N.L.S.] since
her initial release from the hospital in January, 2018. [N.L.S.] is
aware of the status of [Mother] as her mother and can identify her
as such, but has contact with her only during supervised visits.
[N.L.S.] also identifies her resource parent as her mother and has
formed connections and bonds with other members of the
resource parent’s family, and participated in the normal activities
of the family life with them. [N.L.S.] identifies the resource home
as her own.
The resource family has been identified as an adoptive family and
has expressed a willingness to proceed with an adoption. The
resource family has sufficient resources and desire to meet
[N.L.S.’s] long-term needs.
Orphans’ Court Opinion, 10/4/19, at 2-4.
The record supports the court’s conclusions and reflects that, despite
the hardship and injury suffered by the Children, they still have a bond with
Mother. See N.T., 6/25/19, 74-75. The court acknowledged that K.E.E.
expressed a desire to return to Mother’s care. See id. However, there was
some testimony that Mother was attempting to influence the Children to
request a return to her care, as well, with K.E.E. stating to Kohler that,
“Mommy told me if I tell you [I want to live with her] enough times you’ll let
me go home.” N.T., 6/25/19, at 75. Furthermore, both Children also identify
their resource families as their primary caregivers and N.L.S., specifically,
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identifies A.L. as her mother and is strongly bonded to her, as well. N.T.,
8/22/19, at 68.
The testimony further established that during N.L.S.’s hospitalization,
Mother was not involved in N.L.S.’s care and did not seem to be concerned
that the child was in agonizing pain. See N.T., 8/22/19, at 57-60. By
contrast, A.L., N.L.S.’s foster mother, has spent the last eighteen months
assisting N.L.S. with both her painful scar treatment and management, which
will likely continue for the rest of N.L.S.’s life. See N.T., 7/13/19, at 55-61.
The court was also entitled to be concerned with Mother’s failure to
accept responsibility for N.L.S.’s injuries. When asked directly whether she
believed N.L.S. had suffered thermal burns, Mother stated, “I’m not sure what
I believe, but I don’t believe that she did.” N.T., 8/22/19, at 55. Additionally,
there was testimony which established the Agency’s concerns that Mother
continued to use inappropriate care and discipline towards N.L.S. during visits.
N.T., 6/25/19, at 30-31.
The testimony of Dr. Feger further establishes the Children’s
requirement for permanency, noting that the length of time the Children were
“in limbo” could be harming them emotionally, and that both of the Children
were confused with regard to their relationship with Mother and primary
caregivers. N.T., 8/22/19, at 68. Dr. Feger recommended that permanency
be granted to the Children with therapeutic intervention to assist them in
navigating their emotions. See id. at 69.
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The credited testimony supports the orphans’ court’s conclusion that it
would best serve the needs and welfare of the Children to terminate Mother’s
parental rights pursuant to Section 2511(b). Preserving Mother's parental
rights would serve only to deny the Children the safety, permanency, and
stability to which they are entitled. See In re Adoption of C.D.R., 111 A.3d
at 1220 (“Clearly, it would not be in [the child’s] best interest for his life to
remain on hold indefinitely in hopes that Mother will one day be able to act as
his parent”); see also In re K.K.R.-S., 958 A.2d at 535. Accordingly, the
orphans’ court did not err in terminating Mother’s parental rights to the
Children pursuant to Section 2511(b).
Decrees affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 09/08/2020
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